The Minister of Employment and Labour has on 29 April 2020 published Directives[1] to be followed by employers carrying out essential services or other employers permitted to open for business in terms of the easing of lock down restrictions.

The below constitutes a summary of the key points of the Directive and the full Directive should be consulted before proceeding with any cause of action. 
 

Application
The Directive applies to:

• The manufacturing, supply or provision of essential goods or essential services, as defined in Schedule 2 of the Regulations issued in terms of section 27(2) of the Disaster Management Act; and
• Any workplace permitted to continue or commence operations before the expiry of those Regulations.
• Subject to the employer’s obligations under OHSA to conduct a risk assessment, employers with less than 10 employees need only apply the measures set out in clause 40 of the Directive.

Duties of Employers
Every employer must:

• Conduct a risk assessment to give effect to the Directive.
• Notify all employees of the contents of the Directive and the measures it intends to implement.
• Inform employees that if they are sick, they are not required to attend to work and that paid sick leave may be available as set out by section 22 of the BCEA.
• Appoint a manager to communicate with employees. In the event of a health and safety committee being in place, the committee should be consulted on the measures to be adopted.
• Monitor and supervise the strict implementation of the Directive.
• Minimise the number of workers at the workplace at any one time by the utilisation of rotation systems, staggered working hours, shift systems, remote working arrangements or similar measures.
• Take measures to minimise contact between employees and between employees and members of the public.
• Provide workers with information to raise awareness of the dangers of the virus, the manner of transmission, the measures to prevent transmission such as personal hygiene, social distancing and the use of masks, cough etiquette and where to go for screening and testing.
• In the event that an employee is diagnosed with COVID 19 an employer must:
  • Inform the Department of Health and the Department of Employment;
  • Investigate the cause and review its risk assessment and ensure the necessary controls are in place;
  • Give support to contact tracing measures of persons that may have been in contact with the affected person.

Employers that Employ less than 10 Employees
Employers with less than 10 employees must take the following measures:

• Conduct a risk assessment.
• Arrange the workplace to ensure that employees are at least one and a half meters apart or, if not practicable, place physical barriers between employees and employees and members of the public to prevent the possible transmission of the virus.
• Ensure that employees that present with the symptoms related to COVID-19 are not permitted to work. Immediately contact the COVID-19 hotline: 0800 02 9999 for instructions and direct the employee to act in accordance with those instructions.
• Provide cloth masks or require an employee to wear some form of cloth covering over their mouth and nose while at work.
• Provide each employee with hand sanitizers, soap and clean water to wash their hands and disinfectants to sanitize their workstations.
• Ensure that each employee while at work washes with soap and sanitizes their hands.
• Ensure that their workstations are disinfected regularly.
• Take any other measures indicated by the risk assessment.

Employers that Employ more than 500 Employees
If the employer employs more than 500 employees, that employer must submit a record of its risk assessment together with a written policy concerning the protection of the health and safety of its employees from COVID-19 as contemplated in section 7(1) of OHSA to:

• Its health and safety committee established in terms of section 19 of OHSA; and
• The Department of Employment and Labour.

Social Distancing Measures
An employer must arrange the workplace in such a way as to ensure the minimum contact between workers including the following:

• As far as practical that there is a minimum of one and half meters between workers at all times;
• If not practical to arrange work stations to be spaced at least one and half meters apart:
  • Physical barriers are to be erected; or
  • Provide the employee with the required PPE equipment
• Supervise the workplace and common areas to ensure social distancing including implementing queue control, staggering break times and dividing the workplace into groups.

 Health and Safety Measures
Every Employer must implement the following:

• Take measures to screen workers each time they report for work for any observable symptoms associated with Covid-19 namely:
  • Fever;
  • Cough;
  • Sore throat;
  • Redness of eyes; or
  • Shortness of breath/ difficulty breathing.
• Require employees to report if they are suffering from any of the following additional symptoms:
  • Body aches;
  • Loss of smell or loss of taste;
  • Nausea;
  • Vomiting;
  • Diarrhea;
  • Fatigue;
  • Weakness or tiredness.
• Require employees to immediately inform the employer if they experience any of the above listed symptoms.
• Comply with any other guidelines issued by the National Department of Health[2].

What to do if an Employee Presents with Covid 19 Symptoms 
In the event that a worker presents with symptoms, or advises the employer of symptoms, the employer must:

• Not permit the worker to enter the workplace or report for work; or
• If the worker is already at work immediately:
  • isolate the worker;
  • provide the worker with a FFP1 surgical mask;
  • arrange for the worker to be transported in a manner that does not place other workers or members of the public at risk (either to be self-isolated or for a medical examination or testing); and
  • assess the risk of transmission, disinfect the area and the worker’s workstation, refer those workers who may be at risk for screening and take any other appropriate measure to prevent possible transmission.
• Ensure that the worker is tested or referred to an identified testing site.
• Place its employee on paid sick leave in terms of section 22 of the BCEA or if the employee’s sick leave entitlement under the section is exhausted, make application for an illness benefit in terms of clause 4 of the Directive issued on 25 March 2020 on the COVID-19 Temporary Employer Relief Scheme under regulation 10(8) of the Regulations promulgated in terms of section 27(2) of the Disaster Management Act.
• Ensure that the employee is not discriminated against on grounds of having tested positive for COVID-19 in terms of section 6 of the Employment Equity Act, 1998 (Act No. 55 of 1998).
• If there is evidence that the worker contracted COVID-19 as a result of occupational exposure, lodge a claim for compensation in terms of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993.

Return of a Worker who has Recovered from COVID-19
If a worker has been diagnosed with COVID-19 and isolated in accordance with the Department of Health Guidelines, an employer may only allow a worker to return to work on the following conditions:

• The worker has undergone a medical evaluation confirming that the worker has been tested negative for COVID-19.
• The employer ensures that personal hygiene, wearing of masks, social distancing, and cough etiquette is strictly adhered to by the worker.
• The employer closely monitors the worker for symptoms on return to work.

Provision of Sanitizers, Disinfectants and Other Measures
Every employer must free of charge:

• Supply sufficient quantities of sanitizer at:
  • the entrances to the workplace;
  • in the workplace;
• Provide all employees that work away from the workplace ,other than at home, with an adequate supply of hand sanitizer.
• If a worker interacts with the public, sanitizer must be available at the employees work station.

Cleaning of Office and Work Stations
An employer must ensure that:

• All work surfaces and equipment are disinfected:
  •  before work begins,
  • regularly during the working period and
  • after work ends.
• All areas such as toilets, common areas, door handles, shared electronic equipment are regularly cleaned and disinfected.
• Disable biometric systems or make them COVID-19-proof.
• The employer must ensure that:
  • there are adequate facilities for the washing of hands with soap and clean water;
  • only paper towels are provided to dry hands after washing – the use of fabric toweling is prohibited;
  • the workers are required to wash their hands and sanitize their hands regularly while at work;
  • the workers interacting with the public are instructed to sanitize their hands between each interaction with the public;
  • surfaces that workers and members of the public come into contact with are routinely cleaned and disinfected.

Provisions of Cloth Masks
Every employer must provide each of its employees free of charge with:

• A minimum of two cloth masks, which comply with the requirement set out in the Guidelines issued by the Department of Trade, Industry and Competition for the employee to wear while at work and while commuting to and from work.
• Training on the correct use of masks.
• Appropriate arrangements for the washing, drying and ironing of cloth masks.
• If determined by the risk assessment,  issue employees with any other PPE.

Work Places to which the Public has Access
In order to safeguard employees and the public, employers who provide access to the public at the workplaces must:

• Arrange the workplace to ensure that there is a distance of at least one and a half meters between workers and members of the public or between members of the public; or if not practical put in place physical barriers or provide workers with face shields or visors.
• If appropriate, undertake symptom screening measures of persons other than the employees entering the workplace with due regard to available technology and any guidelines issued by the Department of Health.
• If appropriate, display notices advising persons other than employees entering the workplace of the precautions they are required to observe while in the workplace.
• Require members of the public, including suppliers, to wear masks when inside their premises.

What About Ventilation?
Every employer must:

• Keep the workplace well ventilated by natural or mechanical means to reduce the SARS-cov-2 viral load.
• Where reasonably practical, have an effective local extraction ventilation system with high-efficiency particulate air HEPA filters, which is regularly cleaned and maintained, and ensure that its vents do not feed back in through open windows.
• Ensure that filters are cleaned and replaced in accordance with the manufacturer’s instructions by a competent person.

Any other PPE
Every employer must check regularly on the websites of the National Department of Health, National Institute of Communicable Diseases and the National Institute for Occupational Health whether any additional PPE is required or recommended in any guidelines given the nature of the workplace or the nature of a worker’s duties.

Need a COVID-19 WORKPLACE CHECK LIST OR POLICY? We can help, contact DMR for assistance. 

Fred Joubert
fred@dmrlaw.co.za